(BOMBAY BENCH, CAMP: NAGPUR)
Arvind J. Rohee, Member (Judicial):
1. This is a second round of litigation before this Tribunal challenging the impugned order dated 08.05.2008 (Annexure A-1) passed by the Respondent No.2 as the Appellate Authority thereby confirming the penalty of removal of the applicant from service imposed by Respondent No.3, the Disciplinary Authority vide order dated 19.11.2007 (Annexure A-2) and the subsequent order dated 23.06.2009 passed by the Revisional Authority during the pendency of this proceeding, confirming the order passed by the Appellate Authority.
2. The applicant was appointed as Lower Division Clerk at Kendriya Vidyalaya, Ajni, Nagpur. On 25.07.2005 a Memorandum of Charge (Annexure A-3) was served on the applicant, initiating departmental proceeding against him on the ground that he allegedly demanded and accepted gratification of Rs.100/-from one Shri P.G. Joge, TGT, Kendriya Vidyalaya, Ajni, Nagpur for not initiating any action against him on the report lodged by the guardian of one student and that he was caught red handed while accepting the bribe amount on 11.01.1996 and suffered police custody till 18.01.1996. Thus, gross misconduct and violation of Rule 3(1)(i) and (iii) of the Central Civil Services (Conduct) Rules, 1964 is alleged. Pursuant to the charge-sheet, inquiry was held by appointing Inquiry Officer, who reported that both the charges levelled against the applicant stand proved vide Report dated 20.08.2007 (Annexure A-6). The applicant submitted representation dated 17.09.2007 (Annexure A-7) against the finding recorded by the Inquiry Officer, however, the same did not find favour with the Respondent No.3 who held him guilty of misconduct and imposed major penalty of removal from service vide impugned order (Annexure A-2). The applicant unsuccessfully challenged this order before the Respondent No.2 by way of appeal dated 10.12.2007 (Annexure A-8). Since the same was not decided inspite of reminder dated 25.02.2008 (Annexure A-9) the applicant approached this Tribunal by filing previous O.A.No.2057/2008, which was disposed of by order dated 28.03.2008 (Annexure A-10), directing the Respondent No.2 to decide the appeal as expeditiously as possible and preferably within a period of three months from the date of receipt of copy of the order.
3. Pursuant to it the Respondent No.2 passed the impugned order (Annexure A-1) rejecting the appeal and confirming the penalty of removal imposed by the Disciplinary Authority. Although the applicant then preferred the Review Application dated 02.07.2008 (Annexure A-11) to the Commissioner, Kendriya Vidyalaya Sangathan, New Delhi, he filed the present O.A. on 02.07.2008 without waiting for any decision on it by the said authority and during its pendency the said Revision Application/Review Petition came to be dismissed on 23.06.2009.
4. All the three impugned orders have been challenged on the following grounds viz.:
"(a) That the Charge Article No.I does not sustain since no specific date of making demand of illegal gratification and its acceptance in the month of January, 1996 is mentioned therein.
(b) That the applicant being a Lower Division Clerk was not authorised to receive any complaint from anybody against any teaching staff nor he was empowered to initiate any action against the complainant who lodged the complaint with the C.B.I. against the applicant alleging that he demanded and accepted the illegal gratification.
(c) That the complainant Shri Joge averred in his complaint that the Principal of the Institute demanded Rs.200/-from him for himself and he agreed to pay the said amount of illegal gratification to the former and as such there is no question of making any demand by or payment of illegal gratification to the applicant.
(d) That in the absence of any verdict of competent Criminal Court in respect of Charge Article No.II, the Inquiry Officer and all the three authorities were wrong in holding that the said charge stands proved (during the pendency of this proceeding the applicant was acquitted by the Special Court, CBI Nagpur on 22.09.2011), as the said Disciplinary Authority should not have passed any order and should have waited till the decision of the Competent Criminal Court in this behalf.
(e) That the inquiry was conducted in a most slipshod manner and the department failed to establish any of the charges levelled against the applicant. Further, the provisions of Rule 19 of the Central Civil Services (Control, Conduct and Appeal) Rules, 1965 were not followed by the Inquiry Officer and as such the inquiry is vitiated.
(f) That the material witnesses namely the complainant who lodged the report and the two Panch witnesses to the alleged trap Panchnama were not examined during the inquiry and the Inquiry Officer simply relied on their statement recorded by the Investigating Officer during C.B.I. inquiry and without examining them in the departmental proceeding, resulting in denial of the opportunity to the applicant to cross examine those witnesses and hence the inquiry is vitiated.
(g) That the statement recorded by the C.B.I. during investigation of offence registered against the applicant cannot be treated as substantive piece of evidence in the departmental proceeding without examining those witnesses and hence penalty imposed is liable to be quashed.
(h) That the original complainant Shri Ambani and his daughter Hetal who had grievance against the complainant Shri P.G. Joge were also not examined by the Inquiry Officer, who were the material witnesses to prove the charges levelled against the applicant.
(i) That the alleged charges levelled relate to the year 1996 and the inquiry proceeding was initiated on 25.07.2005 i.e. after lapse of about 10 years, without explaining the delay which resulted in causing great prejudice to him. For this reason also the inquiry is vitiated.
(j) That the finding recorded by the Inquiry Officer and all the three authorities are based on conjecture, imagination and surmises and hence is liable to be set aside.
(k) That all the three authorities failed to consider the facts of the case in a proper perspective and came to wrong conclusion and hence the impugned orders are liable to be set aside, with reinstatement in service and consequential benefits to the applicant."
5. The Respondents resisted the application by way of common reply dated 15.07.2009 denying all the adverse allegations and averments made therein including the grounds raised by the applicant. According to them inquiry was conducted properly by following the rules and on the basis of material collected during the inquiry both the charges levelled against the applicant were found to be proved and since demand and acceptance of bribe is a serious misconduct and offence resulting in lowering the prestige of Kendriya Vidyalaya, the penalty of removal was justified. It is also contended that although the criminal prosecution was pending when the departmental inquiry was initiated, there was no haste to proceed with it and penalty was imposed only on proof of charges levelled against the applicant in the departmental proceedings. None of the grounds raised by the applicant are sufficient to quash and set aside the impugned orders passed by the three authorities and hence the application is liable to be dismissed.
6. On 23.01.2014 the matter was taken up for final hearing during the circuit Bench sitting at Nagpur. We have heard the oral submissions of Shri R.K. Shrivastava, learned Advocate for the applicant and Ms.Neerja Choubey, learned Advocate for the Respondents. We have carefully perused the pleadings of the parties and the documents relied upon by them in support of their rival contentions.
7. Consideraimposing The only tion is penalty point that whether the of removal arises impugned passed for our orders by the Disciplinary Authority as confirmed by the Appellate Authority and the Revisional Authority are liable to be set aside on the grounds alleged by the applicant? We record our finding in the affirmative for the following reasons. Reasons
8. As stated earlier it is obvious from record that the applicant was held guilty of committing breach of the provisions of Rule 3(1)(i) (failed to maintain absolute integrity) and Rule 3 (1)(iii) (committing an act which is unbecoming of a Government Servant), in the departmental inquiry and during the pendency of this Original Application he was acquitted by the Special Court for the offences punishable under Section 7(1) and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. The finding of guilt recorded by the Inquiry Officer was accepted by the Disciplinary Authority and the major punishment of removal from service was imposed on the applicant which was confirmed by the Appellate Authority and then finally by the Revisional Authority, although during pendency of this application.
9. It is true that serious allegations of making demand and acceptance of illegal gratification are made against the applicant. In the statement of Articles of Charges framed against the applicant, Article I and II read as under: Article-I That the said Shri A.G. Ranade while functioning as L.D.C. at Kendriya Vidyalaya Ajni duringJanuary 1996 demanded and taken illegal gratification of Rs.100/from Shri P.G. Joge, TGT, Kendriya Vidyalaya, Ajni Nagpur for not initiating action against him on the complaints made by Shri S.K. Ambani father of Ku. Hetal Ambani. Thus, the said Shri A.G. Ranade committed gross misconduct and violated Rule 3(I(i) and (iii) ofCCS (Conduct) Rules, 1964 as applicable to the employees of K.V.S. Article-II That the said Shri A.G. Ranade, while functioning as L.D.C. At Kendriya Vidyalaya Ajni, Nagpur during the period January 1996 was caught red handed by the C.B.I. On 11.01.1996 for taking bribe of Rs. 100/-and was under policy custody from 11.01.1996 to 18.01.1996 due to which the reputation of the KVS is tarnished. Thus the said Shri A.G. Ranade committed gross misconduct and violated Rule 3(1) (i) and (iii) of the CCS (Conduct) Rules, 1964 as applicable to the employees of the KVS.
10. It is also not disputed that at the relevant time the applicant was serving as LDC in Kendriya Vidyalaya and that the complainant Shri P.G. Joge was the former teacher working in the same institute. It is obvious from perusal of the inquiry report at Annexure A-6 that the Presenting Officer was appointed to plead the case of the department and the applicant was given an option to engage any agent or next friend for him to defend, if he so desires. The applicant however preferred to defend himself. A list of documents relied upon by the Department in support of the charges levelled against him is at Annexure A-3 and the list of in all 12 witnesses to prove the charges is at Annexure A-4. These witnesses include the complainant Shri P.G. Joge, Panch witnesses to the Memorandum of alleged trap namely Shri K.D. Jain, Assistant Manager, Punjab National Bank, Nagpur and Shri R.S. Rathore, Jr. Documentation Officer, Patent Information System, Seminary Hills, Nagpur, and other staff members, the police witnesses and Shri S.K. Ambani, guardian of student Kum.Hetal who is alleged to have some grievance against Shri P.G. Joge who appears to have lodged a complaint against him with the Principal of the Institute.
11. Perusal of the Inquiry report and the order passed by all the three authorities simply show that the facts are stated in brief and the grounds raised and submissions made by the applicant and the findings recorded on it. The applicant had practically raised same grounds as raised before the Inquiry Officer and all the three authorities. It is, however, obvious from record that material witnesses namely the complainant Shri P.G. Joge and the original complainant Shri S.K. Ambani were not examined by the Inquiry Officer since the Presenting Officer suggested to drop them although with the consent of the applicant, on the ground that their statements are already recorded by the Investigating Officer during the C.B.I. Inquiry and on the basis of which criminal prosecution was instituted bearing Special Case No.26/2003 (old No.6/96) was filed and further that they will stick to the same averments before the Inquiry Officer. We shall consider this aspect in somewhat detail while considering the grounds raised by the applicant in this behalf.
12. It is obvious from perusal of the judgment dated 22.09.2011 of the Special Court that alongwith the applicant one Dr.Mahesh Sukhdeo Mishra, Principal of Kendriya Navodaya Vidyalaya, Ajni Nagpur was also prosecuted on the similar charge of demanding and accepting the gratification. However, the said prosecution against the said Accused No.1 Dr.M.S. Mishra stood abetted on account of his death. In the prosecution it was alleged that he demanded and accepted Rs.200/-from Shri P.G. Joge as illegal gratification and as such the said prosecution was restricted to the present applicant only who was arrayed as the Accused No.2 there. The fact, however, remains that although the alleged incident of demand and acceptance of bribe amount is of January, 1996 and the criminal prosecution was launched in the same year, the Memorandum initiating departmental proceeding against the applicant was presented only on 25.07.2005 (Annexure A-3) i.e. after more than nine years. The record further shows that although the Inquiry Officer has not elaborately stated or discussed the oral evidence of the witnesses examined, it appears from perusal of the appellate order (Annexure A-1) that during the course of the inquiry only three witnesses were examined namely the two Panch Witnesses and the Dy. Superintendent of Police who had conducted the trap and recorded the statement of the witnesses. The Appellate Authority observed that these witnesses have verified their previous statement recorded by the Investigating Officer and have also narrated about the incident of trap. However, none of the Panch witnesses appeared to have specifically stated that the applicant ever made any demand of illegal gratification from Shri P.G. Joge for not taking any action against him, although they stated that he called upon Shri P.G. Joge to pay his amount of Rs.100/-and after accepting it he left the staff room and thereafter complainant Shri Joge gave a signal to the trap party and subsequently the applicant was apprehended and the tainted currency notes of Rs.100/- were recovered from him. It is clear that neither the Inquiry Officer nor any of the three authorities have ever mentioned about this piece of evidence in their report or orders and the same only finds place in the brief submission of the Presenting Officer Annexure A-4 at page 32-34 under the caption evaluation of evidence. This clearly shows non application of mind not only by the Inquiry Officer but also by all the three responsible authorities who accepted the finding recorded by the Inquiry Officer and confirmed the order of removal of the applicant.
13. So far as ground (a) is concerned, it is true that no specific day of demand and acceptance of illegal gratification is mentioned in charge Article I nor particulars of place and time of the alleged demand and acceptance is disclosed. This aspect was not at all seriously considered either by the Inquiry Officer or the authorities.
14. So far as the ground (b) is concerned it is true that the applicant being the LDC had his own limitations and obviously he was not empowered or authorised to initiate or not to initiate any action against the teaching or non-teaching staff, on the basis of any complaint received against them. However, being the non-teaching staff it can safely be said that the applicant had full access to the office of the Principal and he must have been on visiting terms there for doing the administrative work. The Inquiry Officer and all the three authorities cannot be said to be wrong in rejecting this ground.
15. So far as the ground (c) is concerned as stated earlier in a composite incident of demand and acceptance of illegal gratification both by the deceased Principal of the Institute and the applicant, on account of death of the Principal the trial against him already abetted and there is nothing on record to show that during his life time any departmental proceeding was initiated against him on the said charges.
16. So far as the ground (d) is concerned it is true that during the pendency of the inquiry a criminal prosecution was pending against the applicant. However, it is the settled law that the departmental proceeding and criminal prosecution can go simultaneously and it is not necessary to stay the departmental proceeding since in the latter strict rules of evidence and procedure are required to be followed for holding any accused guilty of any offence, whereas in the former the delinquent can be found guilty of misconduct and a penalty can be imposed for which no strict proof beyond doubt like the one required in the criminal prosecution is necessary and the case can be decided even on preponderance of probabilities. It is another thing that in the present case subsequently the applicant was not found guilty on merit since the competent Criminal Court held that the charge of making demand and acceptance of illegal gratification is not proved against him. The Inquiry Officer was justified in rejecting the request of the applicant to wait till the decision by the competent Criminal Court.
17. So far as ground (e) regarding conduct of inquiry in a most slipshod manner and without application of mind is concerned, perusal of record shows that there is substantial force in this contention. This is so because the Inquiry Officer allowed the Presenting Officer to give up material witnesses namely Shri P.G. Joge and Shri S.K. Ambani. He should have disallowed the request since it is for him to consider who are the material witnesses to be examined during the inquiry in order to establish the charges levelled against the applicant. It did not matter that the applicant consented to the plea of giving up these witnesses, for the simple reason that it was beneficial to him and in fact for giving up the witnesses the consent of the delinquent/charged officer is not at all necessary. The record clearly shows that the inquiry was conducted in a most causal manner and not only the inquiry report but also orders passed by the three authorities were scribed just as a formality and rejecting the main grounds raised by the applicant challenging the inquiry proceeding, without recording or assigning any reasons. Further, the material witnesses were given up on flimsy ground that their statement was already recorded by the Investigating Officer and examining them during the inquiry proceeding would be a repetition and further that the Inquiry Officer had gone with the presumption that those witnesses will stick to the same version before him. However, he had forgotten the fact that by non-examining these witnesses, the valuable right to cross examine them by the applicant, in order to bring the truth before the Inquiry Officer was denied to him for no fault of his own. In such circumstances, it can safely be said that all the three authorities acted in a most casual and arbitrary manner in holding the applicant guilty of both the charges levelled against him and further imposing the penalty of removal, although he was charged with a serious lapse of virtue on his part. In such circumstances, it can safely be said that the inquiry against the applicant is in fact vitiated.
18. The applicant was right in contending that the statement recorded by the CBI Officer during the course of investigation cannot be treated as substantive piece of evidence in a departmental proceeding, without examining those witnesses and hence penalty imposed is liable to be quashed.
19. So far as the ground of delay in initiating the departmental proceeding is concerned, it is obvious from record that although the alleged incident took place in the month of January, 1996, the departmental proceeding was initiated by filing the memorandum of charge only on 25.07.2005. Although the Inquiry Officer and the three authorities have considered this aspect, but under a wrong notion that since the criminal prosecution was pending before the Special Judge, the departmental proceeding could not be initiated. This analogy is devoid of any substance, since as stated earlier departmental proceeding and criminal prosecution can go simultaneously and even pending the criminal prosecution the departmental proceeding can be concluded by imposing penalty on the delinquent/charged officer on proof of charges and it did not matter that later on the same delinquent is acquitted of the same charge by the competent Criminal Court. The entire approach of the Inquiry Officer and all the three authorities can safely be said to be misconceived, irrational and arbitrary. They have failed to consider the fact that the inquiry is vitiated if there is unexplained and inordinate delay in initiating the departmental proceeding against the delinquent/charged officer. In this case there is no plausible explanation whatsoever from the department as to why the departmental proceeding was not initiated against the applicant at the earliest occasion before 25.07.2005. It appears from record that before initiating the departmental inquiry, the department has not conducted any preliminary inquiry by recording statement of all the material witnesses to establish prima-facie that the charges levelled against the applicant sustain and it appears that they simply collected the copies of the statement of witnesses recorded by the Inquiry Officer during the CBI Investigation and copies of the Panchnamas prepared by them. Since the charge-sheet against the applicant and Dr.Mishra was already filed before the Special Court in the year 1996 itself, it is not at all plausible to say that the department would take a period of nine long years to secure copies of those statements and Panchnamas from police machinery and to prepare the memorandum of charge, statement of article of charge, statement of imputation of misconduct, list of documents and list of witnesses to initiate the departmental proceedings against the applicant.
20. So far as the Charge No.II is concerned since the applicant is acquitted on merit by the competent Criminal Court on the same set of facts, this charge does not sustain. It appears that the Inquiry Officer and all the three authorities were impressed with the fact that the applicant was detained in police custody after his arrest by the CBI for a few days and on that count the image of Kendriya Vidyalaya was lowered in the eyes of the public at large. However, simply because the applicant was arrested and was in police custody for a few days, it cannot be said that the charge Article-II stands proved against him in absence of any cogent evidence in this regard.
21. During the course of arguments the learned Advocate for the applicant placed reliance on number of citations. We propose to deal with them briefly as under:
"(i) Firstly in Capt.M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, (1999)3 SCC 679 it has been categorically held that simultaneous continuance of departmental inquiry with the criminal prosecution is not prohibited since scope of these two proceedings is different and they can be continued independently. In that case, however, both the proceedings were based on the same set of facts which were sought to be proved by the same witnesses namely the police and Panchas and the Court had already acquitted the appellant by rejecting the prosecution case, it was held that the finding recorded against the appellant in an ex parte disciplinary enquiry could not be sustained. In the present case also on the same set of facts, the applicant was finally acquitted on merit by the competent Criminal Court and for this reason also the finding recorded in the inquiry proceeding and as confirmed by the three authorities does not sustain.
(ii) In the case of R.S. Sagar Vs. Union of India, (Civil Writ Petition No.3401 of 1998) decided on 01.06.2001, the fact of delay in filing the memorandum / charge-sheet to initiate departmental proceeding is considered. In that case, the appellant was chargesheeted after 11 years of the occurrence. Although the Principal Bench of C.A.T., Delhi held that appellant contributed to the delay since he took 5 years in giving reply, the Hon'ble High Court disagreed with it and held that the charge-sheet issued after inordinate delay causes serious prejudice to the delinquent.
(iii) In the case of P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board, 2006(1) AISLJ 67.A similar view was taken in which it was further held that inordinate delay in issuance of charge-sheet/departmental proceeding must be explained and since charge-sheet was issued after 10 years without explanation the same was quashed.
22. As against this, the learned Advocate for the Respondents also placed reliance on a decision in the case of Food Corporation of India and another Vs. V.P. Bhatia, (1998) 9 SCC 131, and contended that delay in filing the charge-sheet can be condoned. However, in that case there was delay of slightly more than a year in serving the charge-sheet after the recommendation of the Central Vigilance Commission were obtained. In the present case as stated earlier there has been delay of more than 9 years in filing the charge-sheet and hence it cannot be said that the Respondents can overcome this hurdle.
23. So far as the aspect of the delay in filing the charge-sheet/departmental proceeding and completing the departmental inquiry, the charge-sheet/departmental proceeding cannot be quashed by Court or Tribunal on the ground of delay in initiating the departmental proceedings as a matter of course. In this respect we have come across a decision of the Hon'ble Apex Court in a case of State of Punjab and Others Vs. Chaman Lal Goyal, (1995) 2 SCC 570, in which the following principles are laid down:
How long a delay is too long, always depends upon the fact of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing.
24. In the above referred case of Chaman Lal Goyal, the Hon'ble Apex Court has further held that It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and isthus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quashthe charges.
25. In the present case as stated earlier the applicant raised a specific contention that inordinate delay in filing departmental proceeding against him has resulted in causing great prejudice to him. It is obvious that although the departmental proceeding after its initiation by filing Memorandum/Charge-sheet on 25.07.2005 (Annexure A-3) was concluded on submitting the inquiry report dated 20.08.2007 (Annexure A-6) i.e. within a period of two years during which only three witnesses were examined, can also be said to be inordinately long period to complete the inquiry, for which no explanation has been forwarded by the Department and especially when there is nothing on record to show that the delay was attributed to the applicant or that he was responsible for the same. In such circumstances of the case not only the delay of 9 years in filing the departmental proceeding in the incident which occurred in January, 1996, so also delay of two years in deciding the said departmental proceedings can safely be said to be fatal, which results in vitiating the departmental proceeding as well as the finding recorded by the Disciplinary Authority.
26. In the present case the explanation given by the Department for delay in initiating the departmental proceedings on the ground that the criminal prosecution for the same charge was pending against the applicant cannot be said to be convincing by any stretch of imagination and for these reasons the delay occurred cannot be condoned.
27. So far as the scope and power of the Inquiry Officer to summon the witnesses is concerned, the applicant relied upon the decision of the Hon'ble Supreme Court in a case of Union of India and Ors. Vs. Prakash Kumar Tandon, 2009(2) All India Service Law Journal 285. It is held that it was obligatory on the part of the Inquiry Officer to summon the witnesses on the request of the Presenting Officer or the delinquent and it is not for the department to consider as to whether any witness should be examined by it or not and it was for the Inquiry Officer to take a decision thereon. In the present case since the Inquiry Officer has failed to summon the material witnesses the entire inquiry is vitiated.
28. So far as the proof of documents relied upon during the departmental inquiry is concerned, it has been held by the Coordinate Bench of C.A.T., Hyderabad in a caes of S.Sunder Raju Vs. Union of India and Ors., 2013 (1) All India Service Law Journal 26 that mere marking of documents is not enough and such documents must be proved by calling the witnesses and examining them. In the present case, the statement of material witnesses viz. Shri P.G. Joge and Shri S.K. Ambani recorded by the Investigating Officer during the CBI inquiry was treated as substantive piece of evidence of facts stated therein by the Inquiry Officer and the same was relied upon to corroborate the evidence of the Panch witnesses examined during the departmental proceeding. The ratio laid down in the above referred case squarely applies to the facts of the present case.
29. In a case of G. Vallikumari Vs. Andhra Education Society and others, (2010) 1 Supreme Court Cases (LandS) 406, it was held that it is necessary during the departmental inquiry to record reasons by the Inquiry Officer in support of a finding. In that case, the Disciplinary Authority removed the appellant from service without recording reasons and by simply referring the findings of the Inquiry Officer. It was held that there was non-compliance and total non-application of mind and the inquiry was vitiated. Same thing has happened in the present case in which the Disciplinary Authority and the Appellate Authority simply accepted the finding of the Inquiry Officer which is not based on sound footing and without assigning cogent reasons therefor.
30. Lastly, the Hon'ble Punjab and Haryana High Court in a case of Punjab State through its Collector and Anr. Vs. Ex. Constable Gulzar Singh, 2013(2) All India Service Law Journal 76, it was held that an employee could not be punished departmentally on the same charge when he has been acquitted by a Criminal Court on the same set of facts. In the present case also the applicant has been acquitted of the same charge on merit by the Special Court for which he was found guilty during the departmental proceeding. As such the impugned orders are not only bad but are perverse.
31. From the above discussion, it is obvious that the applicant succeeds in establishing important grounds raised by him and discussed above, in establishing the fact that the inquiry against him and the finding recorded by the Inquiry Officer and three authorities is vitiated. It is, therefore, necessary to set aside the impugned orders.
32. (a) In the result, the application is allowed.
(b) The impugned order dated 08.05.2008 passed by Respondent No.2 as Appellate Authority Annexure A-1, the order dated 19.11.2007 passed by the Disciplinary Authority Annexure A-2 and the order dated 02.07.2008 passed by the Revisional Authority confirming the finding recorded by the Inquiry Officer and imposing punishment of removal from service on the applicant are hereby quashed and set aside.
(c) Consequently, the applicant is entitled to be reinstated in the same position of L.D.C. with all consequential monetary benefits and seniority in the cadre.
(d) The Respondents are directed to implement this order immediately on receiving copy of this order and should permit the applicant to resume his duties as L.D.C.
(e) In the facts and circumstances of the case, the parties shall however bear their respective cost of this proceeding.